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Today, in a unanimous decision, the D.C. Circuit upheld the U.S. Nuclear Regulatory Commission’s Continued Storage Rule. Multiple states, a Native American community, and anti-nuclear groups had filed petitions for review of the rule and the underlying generic environmental impact statement (GEIS) that address the long-term storage of spent fuel. The petitioners argued that the NRC failed to comply with its obligations under the National Environmental Policy Act (NEPA). The petitioners claimed that the NRC did not consider alternatives to or mitigation measures for the continued storage of spent nuclear fuel, miscalculated the impacts of continued storage, and relied on unreasonable assumptions in the GEIS. The Court rejected all of the arguments.

In 2012, the D.C. Circuit vacated the NRC’s prior Waste Confidence Rule after finding three specific deficiencies under NEPA. The D.C. Circuit found that the agency had failed to adequately assess the impacts of the failure to establish a permanent repository—a scenario the Court apparently found “reasonably foreseeable” even though it also held that the YuccaMountain licensing process is statutorily mandated by the Nuclear Waste Policy Act. The Court also held that the NRC failed to properly examine the risk of spent fuel pool leaks in a forward-looking fashion and failed to examine the potential consequences of spent fuel pool fires, in addition to the probabilities that such fires might occur. The effect of the decision was that NRC reactor licensing decisions (new licenses and renewed licenses) were suspended until the NRC revised its NEPA assessment.

To address the remand, the NRC completed the comprehensive GEIS and issued a new Continued Storage Rule codifying the generic findings in the GEIS. The rule became effective in October 2014. The generic findings are applied in individual reactor licensing cases.

In the Continued Storage GEIS, the NRC addresses impacts of the interim storage in three timeframes: a short-term storage period extending until 60 years beyond the licensed term for operations; long-term storage pending disposal for up to 100 years beyond the short-term storage period; and an indefinite storage period that assumes that no repository ever becomes available. NRC concluded that availability of a repository in the short-term timeframe is the “most likely” scenario. But NRC nonetheless evaluated all three scenarios, including the impacts of possible spent fuel pool leaks and the probability-weighted impacts of accidents and natural events.

In today’s decision, the Court concludes that the GEIS sufficiently analyzes the impacts of continued storage of spent fuel through an assessment of common risks across reactor sites. The Court also found that the NRC adequately evaluated the probability of the government’s failure to develop a permanent repository for spent fuel and appropriately considered the cumulative impacts of spent fuel storage. The Court deferred to the NRC’s predictive judgments regarding the time frame for removing spent fuel from pools and the unlikelihood of a loss of institutional controls. Regarding spent fuel leaks, the Court held that the NRC adequately considered the risks of short-term, high-volume leaks. And, with respect to mitigation of spent fuel fires, the Court noted that nothing in GEIS suggests that the NRC strayed from NEPA’s “rule of reason.”

As a result of today’s decision, the NRC may continue to issue licenses that rely on the Continued Storage Rule and GEIS.